Further EU fisheries in occupied Western Sahara "will make the EU and its member states further liable for a violation of international law", stated former principal legal advisor of the Swedish government, in a seminar in the European Parliament on 7 December 2011.

1 IntroductionThank you for giving me this opportunity.I am an associate professor of international law at Stockholm University but I was previously employed by the Swedish Ministry for Foreign Affairs for fourteen years. As a principal legal advisor on Public International Law I participated in preparing the Swedish position on the Fisheries Agreement in 2006, when Sweden, as the only member state voted “no”. Due to my role in that process, I have been asked many times about my views on various issues related to the WS conflict, and I have also been asked to present them in public on several occasions. I am honoured to be able to do so in this forum.I stand here as a representative of no one but myself and paid by nobody. I have no view of who should govern Western Sahara – Morocco, Polisario or someone else. I am not pro-Sahrawi nor am I against Morocco; I like the country and I appreciate the great progress that has been made towards democracy and respect for human rights in Morocco proper.My position in this conflict is very simple: International law should be respected and promoted. In this case, this means that the right of self-determination should be respected, and that the EU should not recognise or support aggression and other illegal uses of force.In my presentation I will explain why Western Sahara is an occupied country with a right of self-determination, why any exploitation of its natural resources must be in accordance with the wishes and the interest of the people of Western Sahara and why the European Parliament should reject an extension of the current Fisheries Partnership Agreement.

2 Legal analysis2.1 The legal status of Western SaharaThe people of Western Sahara have right of self-determinationAs everyone on this room knows, Western Sahara was a Spanish colony. In 1963, when the winds of change had started to blow around the world, Western Sahara was listed as a non-self-governing territory by the United Nations. In 1966 the United Nations General Assembly adopted its first resolution [2] on the territory, urging Spain to organize, as soon as possible, a referendum under UN supervision on the territory’s right to exercise its right to self-determination. In 1975, the International Court of Justice (ICJ) rendered an advisory opinion on the Western Sahara question, concluding by 14 votes to two, that while there had been pre-colonial ties between Morocco and some tribes in the territory of Western Sahara, these ties did not imply sovereignty: "Thus the Court has not found legal ties of such a nature as might affect the application of resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory." [3] Resolution 1514, which is the famous resolution on decolonization, provides that “in accordance with their freely expressed will and desire” the peoples of the non-independent territories “enjoy complete independence and freedom.” The right of the people of Western Sahara to self-determination has since then been reaffirmed many times by the General Assembly and by the Security Council, most recently in resolution 1979 of 27 April this year. Consequently, there is no doubt whatsoever, that the people of Western Sahara have a right to self-determination, and that right should be exercised in a referendum. Western Sahara is illegally annexed and illegally occupiedAs is also well known in this forum, just days after the decision by the International Court, on 6 November, 1975, Morocco occupied and later annexed Western Sahara, through the famous “Green march”. The same day, the UN Security Council, in Resolution 380, called upon Morocco “immediately to withdraw … all the participants in the march.” This Moroccan occupation and annexation of the territory constitutes a serious violation of a fundamental, peremptory norm of international law, namely the prohibition of the use of force and aggression. International law provides that “[n]o territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.” [4] Shortly thereafter, Morocco, Mauretania and the colonial power, Spain, entered into an agreement which in convoluted terms transferred the administration of the territory to Morocco and Mauretania. (Maurtenaia withdrew in 1979.) The agreement did not, however, transfer sovereignty explicitly, nor could it have done so, since Spain had no right to dispose of a territory that belonged to the people of that territory. Consequently, the annexation of Western Sahara is not legal and has, consequently, not been recognised by any state. Western Sahara is therefore occupied, as confirmed twice by the General Assembly [5] (just as East Jerusalem is illegally annexed and therefore still occupied and just as Kuwait was illegally annexed in 1990 and therefore still occupied). To sum up so far: Western Sahara is not a part of Morocco and Morocco has no legal title or claim to the territory Since the annexation is illegal, it is null and void, and Morocco is therefore, legally speaking, an occupying power. The people of Western Sahara (the Saharawis) have a right to self-determination, which can be fulfilled through the creation of a fully sovereign state, if they so choose. Therefore, Morocco has an obligation to respect the right of the people of Western Sahara to self-determination and to end its illegal annexation and occupation of Western Sahara. Some people hold that Western Sahara is not occupied but disputed. To be sure, Western Sahara is disputed, just as the occupied West Bank is disputed and just as Kuwait was disputed in 1990 and 1991. But that does not mean that it is not occupied, no less than East Jerusalem is occupied, and Kuwait was occupied in 1990. If I steal your car and claim that it is mine, then the car is disputed, but it is still yours despite my unfounded claim and my illegal possession.

2.2 Use of natural resourcesWhat about the use of natural resources in Western Sahara? Since Morocco has no legal right to govern the territory, she has no legal title to the natural resources of Western Sahara. Consequently, Morocco has no right as a sovereign to dispose of such natural resources for her own purposes. Furthermore, any agreement that Morocco enters into with other countries cannot cover Western Sahara as a part of Morocco.As mentioned, Morocco is, legally speaking, an occupying power. The basic principles of belligerent occupation are: the occupying power may not change the legal and political framework; it should proceed from the premise that the occupation is a temporary status and that the occupying power may not introduce permanent changes into the occupied territory. Furthermore, Western Sahara is still a non-self-governing territory in UN terms, and its people has a right to permanent sovereignty over its natural resources and the right to “freely dispose of their natural wealth and resources ”, as provided in Article 1(2) of the two UN Covenants on Human Rights.Nevertheless, under some circumstances Morocco may use the natural resources of the territory. Under the law of occupation, as set out in the IV Hague Convention on Land Warfare and other rules of international humanitarian law, Morocco has a responsibility to uphold order as well as public life and welfare. This means that Morocco must offer basic public goods to the population of Western Sahara, which entails that there must be income to pay for these goods. Consequently, Morocco may make arrangements with regard to the resources of Western Sahara, provided that they benefit the Sahrawi people. This would be particularly appropriate with regard to renewable resources, like sustainable and reasonable fishing.[6] The principle of self-determination further requires that the people of Western Sahara should be able to influence how this is done. Even if Western Sahara, contratry to my argument above, is no occupied but mere “administered”, fact is that the rules governing the administration of non-self-governing territories point in the same direction as the law of occupation. This is provided for in Article 73 of the UN Charter and has been developed in a legal opinion by the then UN Legal Counsel, Hans Corell, in 2002.[7] The opinion concluded, with regard to oil exploration, that if "further exploration and exploitation activities were to proceed in disregard of the interests and wishes of the people of Western Sahara, they would be in violation of the international law principles applicable to mineral resource activities in Non-Self-Governing Territories.” Corell has in a later speech rightly confirmed that this applies also to fishing. [8] These principles have been confirmed by the UN General Assembly in 2006.

Consequently:– Morocco may not dispose of the resources of Western Sahara for her own benefit. – Any agreement entered into by Morocco in her own name does not cover Western Sahara, since Western Sahara is not a part of Morocco. – Morocco may enter into agreements regarding the use of natural resources as an occupying or de facto administering power with regard to the territory of Western Sahara but only provided that – any such agreement must be for the benefit of the people of Western Sahara and according to the wishes of that people.

2.3 Duties of the EU and its member statesWhat, then, should third states, like the EU and its member states do? In case of a serious breach of a peremptory norm, like aggression and illegal annexation, third states have the following duties: 1. States shall cooperate to bring to an end through lawful means any serious breach ...2. No State shall recognize as lawful a situation created by a serious breach, nor render aid or assistance in maintaining that situation. [9]

In an advisory opinion, the ICJ has confirmed and applied these principles. [10] These principles are general and apply to the situation of Western Sahara as well, meaning that the EU and its member states shall not recognise the annexation of the territory and that they shall not assist Morocco in its continued occupation and annexation. Further, they should cooperate to bring an end to the illegal situation. Consequently, it is illegal to enter into an agreement with Morocco, which explicitly or implicitly recognises the annexation of Western Sahara; any agreement that covers Western Sahara must clarify that the territory is not under Moroccan sovereignty. Further, it means that any such agreement should not strengthen the Moroccan occupation, and should hence not support measures that strengthen Moroccan control or that facilitate Morocco’s transfer of settlers into the territory. In addition, as was explained above, if an agreement is concluded that covers fishing or other natural resources, that must be to the benefit of the Sahrawi people and in accordance with their wishes.

2.4 The Fisheries Partnership Agreement (FPA)So what has the EU actually done? On 22 May 2006, the EU adopted the Fisheries Partnership Agreement with Morocco with one negative vote (Sweden) and three abstentions or reservations (Finland, Ireland, The Netherlands). The application of this Agreement is, as is well-known in this room, up for a one-year extension through a draft decision of the Council of Ministers on 4 July. This time seven states abstained or voted no, and it is this decision that is now before you. Is this agreement in accordance with international law? The FPA does not explicitly cover the waters outside Western Sahara. However, it was clearly the intention of the parties that it should cover these waters, and it has indeed covered the waters outside Western Sahara, as admitted by the Commission in 2008. Therefore, the Fisheries Partnership Agreement implicitly recognises Moroccan sovereignty over Western Sahara, and consequently, already on this count, it is clear that the agreement violates international law. I think that this is a fairly serious breach, and relevant members of the European Union would surely be reprimanded for this if the matter came up before the International Court of Justice. [11]Has the Agreement also supported the illegal annexation or has it been in accordance with the interests and the wishes of the Sahrawi people? As for the wishes of the people, Polisario say that they have never been asked whether they approve of the agreement and Polisario as well as many Sahrawi personalities have made their opposition to the agreement well-known. There appears to have been no efforts to consult the Sahrawi people. Consequently, there are no signs that the agreement is in accordance with the wishes of the people. What about the interests of the people? The Commission has asked Morocco for a statement of how the FPA has benefitted "the local population". That question was based on a flawed analysis. The analysis purported to proceed from Hans Corell's opinion, but actually distorted his conclusions. Whereas Corell rightly pointed at "the interests and wishes of the people of Western Sahara”, the Commission has restricted itself to ask whether the FPA has been to “the benefit of the local population”. [12] Hence, the Commission has omitted the reference to the “wishes” of the people. Further, instead of asking about the “people” of Western Sahara, the Commission asked about how the FPA affects “the local population”, which consists largely of Moroccan settlers, who have been transferred into occupied territory in violation of Article 49 of the IV Geneva Convention of 1949.On 13 December 2010, Morocco replied to this question, which in itself was much too restricted, but not even this reply has been made public. Consequently, there are very strong reasons to conclude that the agreement is not in the interest of or according to the wishes of, the Sahrawi people, but rather has strengthened Morocco’s grip on Western Sahara. So, the agreement is illegal on that count as well. It is necessary to add here that the responsibility to ensure that the agreement is implemented in accordance with international law is not only Morocco’s. As has been explained, it is a responsibility of third parties not to recognize an illegal situation, such as the annexation of Western Sahara, and not to assist in illegal actions, such as the illegal exploitation of a people’s natural resources.

3 ConclusionIn late 2009, the legal service of the European Parliament provided an opinion about the FPA and Western Sahara. The legal service found that "compliance with international law requires that economic activities related to the natural resources of a Non-Self-Governing Territory are carried out for the benefits of the people of such Territory, and in accordance with their wishes." Further, "[i] n the event that it could not be demonstrated that the FPA was implemented in conformity with the principles of international law concerning the rights of the Saharawi people over their natural resources, principles which the Community is bound to respect, the Community should refrain from allowing vessels to fish in the waters off Western Sahara by requesting fisheries licences only for fishing zones that are situated in the waters off Morocco”.

The legal service of the European Parliament has analysed the situation correctly.

If the FPA of 2006 is extended, it will make the EU and its member states further liable for a violation of international law, namely as a recognition of and assistance to serious breaches of international law by Morocco.

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All through my diplomatic career I was heavily involved in the EU’s common foreign and security policy, participating in meetings of the working groups on public international law, the ICC, human rights, the Maghreb, counterterrorism, non-proliferation and probably some others that I have forgotten. I spent a lot of time drafting EU instruments, like the EU action plan on the ICC and the EU guidelines on the promotion of compliance with international humanitarian law. I have always been a strong and proud proponent of European political cooperation, which I believe is a force for the good. I know by heart that the Treaty on European Union says that “The Union’s action on the international scene shall be guided by … respect for the principles of the United Nations Charter and international law” and that the European Security Strategy strives for a rule-based international order. On Western Sahara, however, I am embarrassed to say, parochial political and economic interests have trumped the union’s own principles and values. This has been noted in different corners of the world, and will not improve our credibility as champions for human rights and international law. As much as I am ashamed by the failure of our governments to implement our principles and values, I am proud that the strongest opposition to this egoistic policy has come from the representatives of the European peoples, in this Parliament. My deeply felt conviction is that to you should now follow the analysis of your legal service and soundly reject this disgraceful agreement.

I thank you for your attention.

[1] This presentation builds on a memorandum authored by Dr. Wrange and six other leading Swedish academics.[2] UN General Assembly, 1966, Resolution 2229 (XXI).[3] ICJ Reports, 1975, p. 68, para. 162.[4] The UN General Assembly's Definition of Aggression, resolution 3314 (XXIV).[5] Resolutions 34/37 (1979) and 35/19 (1980),[6] This is, of course, not to say that the fishing actually going on in Sahrawi waters actually is responsible and sustainable. [7] UN Doc S/2002/161.[8] http://www.havc.se/res/SelectedMaterial/20081205pretoriawesternsahara1.pdf[9] Article 41, Articles on State Responsibility, annexed to General Assembly Resolution 56/83, 2001.[10] "All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention … have in addition the obligation, … to ensure compliance … with international humanitarian law as embodied in that Convention." Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, paragraph 163[11] If such a case would ever to come up before the ICJ, I believe that the difficult Issue would not be whether a breach of international law has occurred but whether it is the EU and/or members that is responsible.[12] See Recommendation from the Commission to the Council 11.2.2011, SEC(2011) 170 final, and see further Hans Corell’s dismay expressed in his Pretoria address, cited above.

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